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State v. Williams

Superior Court of Delaware

October 30, 2017

STATE OF DELAWARE, Plaintiff,
v.
KEVIN L. WILLIAMS, Defendant.

          Date submitted: August 18, 2017

          Eric H. Zubrow, Esquire, Deputy Attorney General, Delaware Department of Justice, Attorney for the State.

          Natalie S. Woloshin, Esquire, Attorney for the Defendant.

          COMMISSIONER'S REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF

          Bradley V. Manning, Commissioner.

         This 30th day of October 2017, upon consideration of defendant Kevin L. Williams's amended motion for postconviction relief (hereinafter "Motion"), I find and recommend the following:

         Procedural History

         On November 19, 2012, Williams was indicted by a Grand Jury on 19 counts of Unlawful Sexual Contact First Degree ("USC") and one count of Continuous Sexual Abuse of a Child. Each of the 19 counts of USC was worded identically and used the same date range: August 1, 2002 to June 30, 2003. The alleged victim for all counts was the same child, Jean Smith.[1]

         Williams was re-indicted on March 4, 2013. The re-indictment also used the identical language for each count, but changed two of the counts of USC to denote a new victim, Ava Smith. Additionally, the date range for all of the counts, except that of Continuous Sexual Abuse of a Child, was changed to cover varying periods of time ranging from August 1, 2002 to June 30, 2008.

         On May 31, 2013, the State filed a motion to amend the re-indictment. The motion sought to amend the dates of count 18 from August 1, 2007 to June 30, 2008, to that of May 1, 2006 to September 30, 2006, and to amend the dates of count 19 from August 1, 2007 to June 30, 2008, to that of September 1, 2009 to June 30, 2010. The Motion was granted on June 3, 2013, without objection by trial counsel.

         Immediately prior to the start of trial, the State entered a nolle prosequi on all but six counts of the indictment. The State proceeded to trial on five counts of USC, three pertaining to Jean Smith and two pertaining to Ava Smith. The one count of Continuous Sexual Abuse of a Child pertaining solely to Jean Smith remained. Trial was held before a jury June 11-14, 2013. Williams was convicted of all counts and sentenced on September 20, 2013. At the time of sentencing, the State entered a second nolle prosequi on two of the counts of USC that pertained to Jean Smith. Trial counsel and the State stipulated that those crimes had occurred before the statute, as indicted, was enacted. Ultimately, Williams was sentenced to 23 years of unsuspended Level V time followed by probation. Williams's conviction was subsequently affirmed on direct appeal by the Delaware Supreme Court on August 21, 2014.[2]

         Williams filed a timely pro se motion for postconviction relief on January 12, 2015. On February 2, 2015, a request was sent by the Court to the Office of Conflicts Counsel to appoint counsel to represent Williams on his pending motion. On November 3, 2015, counsel was appointed to represent Williams and a briefing scheduled was issued by the Court ten days later. After a number of extensions, appointed counsel filed the Motion now before the Court.

In his Motion, Williams raises two grounds for relief:
Ground one: Trial Counsel was ineffective in failing to file a bill of particulars in Mr. Williams's case which resulted in a violation of Mr. Williams's sixth amendment rights and due process rights.
Ground two: Trial Counsel was ineffective in failing to object to the motion to amend the indictment in violation of Mr. Williams's sixth amendment and due process rights.

         Trial counsel filed his Affidavit responding to Williams's claims on June 6, 2016. The State filed its Response on June 28, 2016. Williams filed his Reply on July 29, 2016. On March 22, 2017, at the request of the Court, trial counsel filed a Supplemental Affidavit addressing the second claim raised by Williams more thoroughly. Due to the nature of the allegations presented in William's Motion and the trial record, an evidentiary hearing as to Williams's claims was held on May 31, 2017. At the hearing, Williams's trial counsel was the sole witness. Upon conclusion of the hearing, both parties submitted supplemental briefing at the Court's request.

         Relevant Facts

         On November 10, 2011, Michelle Smith brought her two daughters, Jean and Ava Smith to the Delaware State Police and reported that Kevin Williams had sexually assaulted them over a number of years throughout their childhood. Both girls gave an initial statement to police that was documented in police reports later provided to trial counsel. After their initial statement to police, both girls were interviewed at the Child Advocacy Center ("CAC") on December 12, 2011. Copies of the CAC interviews were sent to trial counsel on June 6, 2013, and stamped as "received" by his office on June 10, 2013.[3] Trial counsel testified, and his contemporaneous notes confirm, that he reviewed the CAC interviews the night before the trial began.[4] Trial counsel also received 23 pages of redacted Division of Family Services records at the same time. Aside from the allegations made by the two girls, no other evidence substantiating the crimes was produced in discovery or presented at trial. Williams testified in his defense at trial and denied any type of inappropriate sexual contact with either victim at any time.

         Evidence Prior to Trial

         The entirety of the evidence provided by the State to trial counsel prior to trial consisted of the Affidavit of Probable Cause ("APC") from Williams's arrest, the redacted police reports, redacted DFS records, and the recorded CAC interviews. The names within the reports were redacted, however trial counsel testified that he was able to determine who had said what with the assistance of Williams.[5]

         Jean reported that when she was in the third grade at her Aunt's house on fourth street, she fell asleep on Williams's stomach/chest, as she often did as a child. This time however, she awoke to feel him rubbing his private part (penis) up against her private part (vagina). Williams's had pulled his pants part-way down and pulled her underwear off to the side.[6] Jean reported that Williams would, on a regular basis, enter her room and kiss her neck and rub his private part on her private part. During the CAC interview, she stated "that happened all the time."[7] Jean disclosed that Williams would touch her chest and buttocks with his hand as well as ejaculate on her stomach.[8] Jean added that this happened "all the time."[9] Finally, Jean disclosed that on one occasion Williams grabbed her hand and forced her to touch his penis as they both stood in the kitchen of her home. Jean stated that this caused her to then "throw-up."[10]

         As to Ava, the APC indicates that she "disclosed that Williams would touch her buttock[s] on top of clothing while hugging her [and] that Williams grabbed her hand and placed it on his private part (penis)." The redacted police reports indicate that Ava reported that Williams pulled his pants down and attempted to sexually assault her in a public park after a shopping trip-during trial this was known as the "Monkey Hill" incident due to where it occurred.[11] The police reports indicate that Ava reported that the incidents with Williams began when she was in the seventh grade. In the CAC interview, Ava advised that prior to the first time, Williams had reprimanded her for being down the street with a number of young girls and that he "had something for her."[12] Ava reported that later that same night, Williams entered her room, got on top of her and tried to kiss her neck, however, Michelle Williams entered the room before anything further could happen. Ava also disclosed during the CAC interview a time when she was in the shower when Williams took her hand and had her touch his erect penis as he stood outside the shower.[13]

         Legal Standard

         To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[14] The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires the defendant to show that there is a reasonable probability that, but for trial counsel's unprofessional errors, the outcome of the proceedings would have been different.[15]

         When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong.[16] Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[17] An error by trial counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.[18]

         In considering post-trial attacks on counsel, Strickland cautions that trial counsel's performance should be reviewed from his or her perspective at the time decisions were being made.[19] A fair assessment of attorney performance requires that every effort is made to eliminate the distorting efforts of hindsight. Second guessing or "Monday morning quarterbacking" should be avoided.[20]

         Most germane to this case, the law requires that there is a "reasonable probability" that the outcome of the case would have been different but for trial counsel's deficient performance. The use of the word "probably" is important, because under Strickland, the "probability" of a different outcome does not mean a mere "possibility"-it is a higher standard. In Neal v. State, the Delaware Supreme Court expounded on the Strickland burden of proof analysis under the prejudice prong, it held:

A reasonable probability of a different result requires a probability sufficient to undermine confidence in the outcome. Although this standard is not mathematically precise and does not necessarily require a showing of more likely than not, Strickland requires more than a showing merely that the conduct could have or might have or it is possible that it would have led to a different ...

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